Lowry v Coordinator-General

[2011] QLC 73

LAND COURT OF QUEENSLAND

CITATION:

Lowry -v- Coordinator-General [2011] QLC 73

PARTIES:

David Lowry
(applicant)

v.

Coordinator-General
(respondent)

FILE NO:

AQL204-11

DIVISION:

General Division

PROCEEDING:

Application to call rebuttal evidence

DELIVERED ON:

25 October 2011 [Ex Tempore]

DELIVERED AT:

Brisbane

HEARD AT:

Brisbane

MEMBER:

His Honour, PA Smith

ORDER:

1.     The applicant’s application shall not be ruled upon until the final determination of this matter.

2.     The applicant is allowed, subject to the final ruling on the application, to call the rebuttal evidence.

CATCHWORDS:

Oral application to call rebuttal evidence – challenge made to an expert’s factual assumptions in circumstances where no challenge was made in cross-examination – considerations of equity, fairness and expediency – evidence allowed subject to final ruling

APPEARANCES:

Mr G Allan of Counsel for the applicant
Mr D O’Brien of Counsel for the respondent

SOLICITORS:

Ms Megan Tilbrook of Anderssen Lawyers for the applicant
Ms Charlotte Gill of Corrs Chambers Westgarth Lawyers for the respondent

1. [The applicant sought to call rebuttal evidence from eight witnesses who had filed affidavits in these proceedings. The basis of the evidence was to rebut evidence given by the respondent’s valuer as to his inspections of sales 2, 3 and 5.

2. Mr Allan of Counsel summarised his application as follows:[1]

   “… this evidence is sought to be called and relied upon by the applicant to rebut what, on the applicant's case… is false evidence given under oath by Mr Litherland as to the extent and nature of his inspections.

   It goes to an issue of fact in this case, namely, the values… which he has applied - I use that word loosely - in his apportionment using the summation method his primary check method. And he agreed, during his cross‑examination, that it was critically important to confirm the accuracy of the information that he has given evidence about in respect of each of those sales that he's adopted for himself, if he was adopting information from another source. That appears at 4-28 of the transcript, lines 48 to 55.

   He's agreed, in cross-examination, that in a compulsory acquisition matter it was critically important for the valuer to undertake his own investigations of the sales evidence. That appears at page 423, lines 40 to 45 of the transcript. He agreed that it's critically important for the valuer, when preparing a report in a compulsory acquisition matter, for the valuer, himself, to carry out his own inspections of the subject property and the sales evidence. And that appears at page 423, lines 48 to 60, and also at page 424, lines 1 to 10.

   Further, he's agreed, in cross-examination, that it's critically important for the valuer preparing a report in a compulsory acquisition matter to carry out his own analysis of the sales evidence upon which he has a regard to for the purpose of assisting him in determining the value of the subject property. And that appears at page 4-24, lines 12 to 18.

   Further, he's agreed that it's critically important when investigating the sales evidence, where the source of the information is another person, or the valuer in a compulsory acquisition matter, to confirm their accuracy of that information because if the information is inaccurate he would be adopting those inaccuracies. And he's agreed further that the only way to confirm the accuracy and reliability of that information is to do the work himself, namely, to measure the buildings, to record his own measurements, and to apply a value to the site improvements, and he's done that at pages 4‑28, lines 48 to 60, and 4-29, lines 1 to 30 of the transcript.”

   [1]     Transcript 25 October 2011, p49 L2.

3. The respondent opposed the application, both on substantive reasons and also on questions of fairness and compliance with Court orders. Mr O’Brien of Counsel contended that the evidence that is sought to be led now is evidence that had been available to the applicants for some time.

4. Mr O’Brien made the following observations:[2]

   [2]     Transcript 25 October 2011, p.60 L12.

   “Again, I’ll come back to cross on evidence, but before doing that can I make a point of issue on point, which your Honour’s already latched on, and that is this:  That it has never been suggested that the underlying facts of Mr Litherland’s report are wrong, other than one or two occasional instances - one or two minor points. Generally there’s been no attack on the underlying factual matters stated in that report.

   Now, if that was to be an issue in the case, if it was to be challenged that those facts are wrong, then he should have been challenged about it. And again, to make the matters worse, your Honour directed that the experts confer - by paragraph 5 of the order - “The experts confer, specifying the matters of agreement and the matters of disagreement.”

   Well, one looks at the joint expert report and what is apparent on it?  Firstly, is that Mr Cupitt comments on all of the five sales. He volunteers the explanation - or his suggested view - or opinion that they’re not comparable. Now, how could he have done that without seeing the properties?   And if he had some disagreement with what had been stated by Mr Cupitt in his report, he should have stated it then, but he didn’t.

   So we have this - this is where the whole procedure goes completely off the rails. These directions were made for the purpose of making sure this trial is run properly. We have a situation now where apparently it’s going to be suggested that the underlying factual matters in Mr Litherland’s report are, in fact, correct, despite the fact it’s not been put to him, despite the fact that the applicant’s witness - expert witness never raised any of those concerns in the joint conclave process.

   Now, they want to call another eight witnesses when, as your Honour said - alluded straightaway, firstly, stop suggesting that this is a surprise, that somehow they didn’t know about it. And as I’ve made the point, they could have got the evidence. And also, this is a peripheral issue, it’s not - it is, at best, a matter of minimal importance when, as your Honour’s identified, the underlying facts are not being challenged… ”

   [3]“And now they want to lengthen this trial by calling evidence that they should have collected at an earlier point in time. They’ve had their chance. They could have led this evidence in the trial. If it goes to a critical issue in the case, as you suggested, then it's evidence that they should have led in their case, just as I would have had to lead in my case, evidence that casts doubt on Cupitt's evidence.

   If I had information that suggested that Cupitt had misunderstood something or not engaged in a procedure which he said that he had, I would have had to lead that evidence in my case. And for the same reason the plaintiff - that’s part of the reason that these directions were made, that the witnesses statements would be available, that the expert witness reports would be filed in advance of the trial. So these very things don't happen, and no explanation's been provided as to why the evidence wasn't put forward at an earlier point in time.

   And absent that explanation, it's just not good enough, and it's not fair and it's not appropriate to lengthen this trial any further by calling these witnesses. On a point - I mean my learned friend made it clear this solely relates to the cross check valuation by my learned friend, and my learned friend makes it painfully clear that this - the cross check, without the cross check valuation then really one has to call into doubt Mr Litherland's evidence.

   Well, one can't forget that Mr Cupitt did no cross check at all. He said in evidence that he did one but he didn’t put it in his report. So it is a - I mention that because it is a peripheral issue. It goes to a cross check method of valuation. It's made very clear that's what it relates to. And they’ve had every opportunity to put this evidence in at an earlier point in time… ”

   [4]“The reality is valuers everyday of the year print‑out these reports from Jetvale and other things, and they get information from a variety of sources, and the critical thing, that ultimately your Honour will have to decide, is the exercise Mr Litherland did in relation undertaking inspection of these properties, and the exercise he did generally…

   [5]And it's not the case that the applicant is now able to say that, in fact, all those factual matters in his report, Mr Litherland's report, to which he was never cross‑examined ‑ whether they were actually true or not, and which Mr Cupitt has entered into a joint expert report and not disputed, after he's actually seen the properties, and said that they're not comparable.

   It is not open to challenge those factual matters now. If that was going to be done, it had to be done under cross‑examination. It was never done. If it had to be done, it should have been addressed in the joint expert report, and it hasn't been done… there were a number of inaccuracies that were picked up but as I understand my learned friend's point, he says this is critical ‑ issue, this application, because at the end of the day he's going to be entitled to make the submission that all the factual matters, in Mr Litherland's report, have to be ignored. In circumstances where nearly ‑ the vast majority of them, he has not disputed. The vast ‑ and, in fact, none of them have, in fact, been disputed by Mr Cupitt, in the expert conclave process.

   If that's right, then why are we having expert conclaves?  What ‑ so that the experts can go in there, and not ‑ go through the sales, work out whether the underlying factual matters are right, and we just find out at a trial that ‑ and, indeed, not just at the trial, at the end of a trial, that all of that's going to be disputed; despite it never being challenged in any substantive way.”

   [3]     Transcript 25 October 2011, p.67 L46.

   [4]     Transcript 25 October 2011, p.70 L46.

   [5]     Transcript 25 October 2011, p.70 L56.

5. Mr Allan, in reply, strongly rejected Mr O’Brien’s assertions.

6. The following Ex Tempore reasons were then given.]

7. I do have a view on the application, but I'm not going to express it at this stage. I have instead, a manner of proceeding which may satisfy no-one, but perhaps will, at the end of the day, make the whole proceedings a little bit cheaper.

8. If I were to rule in favour of the applicant, there's no doubt that that could become a significant appeal point, and the decision in the matter could become very complicated. But at least the evidence would be in.

9. If I was to rule for the respondent, the difficulty arises that Mr Allen may well convince an appellant Court that fundamental evidence was not before this Court, and we then have the unsatisfactory position where I expect the matter would get remitted back. Either way, costly appellant procedures are likely to flow from this matter, and the final resolution of the hearing may indeed be delayed by anything up to six months or a year.

10. My over-riding principle in this matter is to act in the interests of equity; fairness; expedition; and to reach a just outcome; if I can summarise the obligations of the Court. I expect that the applicants in this case feel as if none of that is occurring in these proceedings. That is unfortunately what may happen when contested matters get before the Courts, even in Courts that are set up to be - as this Court is often referred to - as the People's Court.

11. I take into particular note that this is a compulsory acquisition case; that is, the applicants’ being unsatisfied with the compensation they have been paid, bringing a case before the Court in circumstances where - as they've made clear by their own evidence, and generally is the case - that their property has been taken compulsorily for purposes of the state. So it's an action they've been forced into, unless of course, they are seeking monies above that to what they are entitled. There is certainly consequences that flow at the end of the day if that's the case, but no-one can deny the right of a person who's property is compulsorily taken to question the amount of compensation paid, and have their day in Court to have that determined.

12. I view the additional evidence that is sought to be called in this matter as, in many ways, peripheral. However, if Mr Allan is correct, such evidence may go to fundamental conclusions as regards the manner in which the evidence of Mr Litherland should be dealt with.

13. I mentioned earlier that I reached a view, and I will put on record now that that view is, at this stage, generally in conformity of the submissions put by the respondent. However, I have not had an opportunity to read the cases; I have not had time to properly consider the matter; and I don't want to delay this hearing by taking up time to fully consider those issues, write a separate decision, or give an oral decision on those matters and then have further delay in the case.

14. I therefore propose to not rule on this application until the final determination of this matter, and to allow, subject to the final ruling in this matter, the applicant to call the rebuttal evidence, but with a clear warning that the final ruling may be against that rebuttal evidence being properly available to be called, which may certainly have significant costs ramifications.

15. In deciding not to determine the application until the final decision in this matter, I also indicate that my final decision in this matter will be undertaken on two scenarios; and that is my findings on the evidence, and the law of the matter, if the evidence is allowed, and my findings if the evidence is not allowed.

16. I have determined this course so that whatever occurs, at the end of the day should this matter proceed to appeal, the matter can be fully dealt with by an Appellant Court with everything before them, and with hopefully no need for any remitter back to this Court, and therefore out of the mess that this matter has become, and the length that this matter's become, at least expedition can occur for the final disposition of the matter.

17. [Directions were then made regarding the expeditious taking of the further evidence.]

End Note

1. The Court, during the course of submissions, made the following observations:

   “I must admit both sides are pushing me to the position where never again will I allow any hearing date to be set down in a matter without the rules and practice directions having been followed, which is that both counsel sign in blood that every bit of evidence is ready and in full form to go before the Court before a matter even receives a hearing date, which will only delay all hearings by another six to 12 months. It is in the practices of the Land Court, but it is one that we have relaxed in recent years. …
   The old way that you do not get your hearing date until it is completely ready for hearing. …
   We attempt to speed things up, and this was a case where everyone assured me that we were ready for hearing, and since then it is just got worse and worse, hasn’t it?”

Orders

1. The applicant’s application shall not be ruled upon until the final determination of this matter.

2. The applicant is allowed, subject to the final ruling on the application, to call the rebuttal evidence.

HIS HONOUR PA SMITH

MEMBER OF THE LAND COURT